332
Opinion of the Court
That the [warrantless] arrest of any other offenders . . . for offences in like manner scandalous and prejudicial to the public, may be justified." 2 Hawkins, ch. 12, § 20, at 122. A number of other common-law commentaries shared Hawkins's broad reading of Holyday. See The Law of Arrests 205 (2d ed. 1753) (In light of Holyday, "an Arrest of an Offender . . . for any Crime prejudicial to the Publick, seems to be justifiable"); 1 T. Cunningham, A New and Complete Law Dictionary (1771) (definition of "arrest") (same); 1 G. Jacob, The Law Dictionary 129 (1st Am. ed. 1811) (same). See generally C. Greaves, Law of Arrest Without a Warrant, in The Criminal Law Consolidation Acts, p. lxiii (1870) ("[Holyday] is rested upon the broad ground that 'it is pro bono publico to stay such offenders,' which is equally applicable to every case of misdemeanor . . . ").6
We thus find disagreement, not unanimity, among both the common-law jurists and the text writers who sought to pull the cases together and summarize accepted practice. Having reviewed the relevant English decisions, as well as English and colonial American legal treatises, legal dictionaries, and procedure manuals, we simply are not convinced that Atwater's is the correct, or even necessarily the better, reading of the common-law history.
6 King v. Wilkes, 2 Wils. K. B. 151, 95 Eng. Rep. 737 (1763), and Money v. Leach, 3 Burr. 1742, 97 Eng. Rep. 1075 (K. B. 1765), two of the decisions arising out of the controversy that generated Wilkes v. Wood, Lofft 1, 98 Eng. Rep. 489 (C. P. 1763), the "paradigm search and seizure case for Americans" of the founding generation, Amar, Fourth Amendment First Principles, 107 Harv. L. Rev. 757, 772 (1994), also contain dicta suggesting a somewhat broader conception of common-law arrest power than the one Atwater advances. See, e. g., King v. Wilkes, supra, at 158, 95 Eng. Rep., at 741 ("[I]f a crime be done in his sight," a justice of the peace "may commit the criminal upon the spot"); Money v. Leach, supra, at 1766, 97 Eng. Rep., at 1088 ("The common law, in many cases, gives authority to arrest without a warrant; more especially, where taken in the very act . . .").
Page: Index Previous 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 NextLast modified: October 4, 2007